How many times have we heard a person exclaim, “I just want my day in court!”? Often, this is in response to what that person considers to be an insulting settlement proposal or as a result of frustration over delays in resolving a conflict.

Just what does that person mean by their “day in court”? I suggest that it is not as simple as we might think. The phrase “day in court” conjures up different mental images depending on one’s background and the situation.

The traditional definition focuses on a person’s right to be heard in a court hearing or trial. For many people, it reflects a romantic notion that the person can enter the courthouse and find a judge who will listen attentively to their story and provide a fair and just outcome (in their favour of course). We know, of course, that the process is a wee bit more complex than this!

So, is a full court hearing (plus all the steps leading up to it) what these folks really want?

I think not.

Many reports confirm that significant civil legal needs in Canada are not being met and that the formal court system is becoming irrelevant to most citizens due to cost, delay and complexity. Unfortunately, the “romantic notion” doesn’t reflect the reality of a court action today. Except for those who frequently use the court system, most people won’t be able to picture in advance the actual litigation machine which sucks time and money into activities such as drafting pleadings, service, document production, examinations for discovery, expert reports, chambers applications, legal arguments, cross-examination and trial. They won’t necessarily understand how their story would become unrecognizable as it was translated into legalese and framed in legal issues.

If presented this way, I’ll bet the majority of citizens would immediately say that is not what they meant!

So what do they mean?

The research on procedural justice suggests that people with complaints, claims or disputes want to tell their story in their own way (their “voice”) to someone in authority who:

will listen respectfully

will try to understand their perspective and consider their views and

who will treat the matter fairly and even-handedly

Further, research has shown that perceptions of procedural justice profoundly affect people’s perceptions of distributive justice (the substantive fairness of the outcomes themselves). The better the process, the better people feel about the outcome.

These goals can be reached through approaches other than a formal court or tribunal hearing. Fortunately, there are many other options available these days, instead of or in addition to the court process. For example, if a person has a complaint about a service or a professional, sometimes all they need is for someone in authority (a manager or owner of the service; a representative of a professional body) to listen to their story, to acknowledge the impact of the events, to take it seriously and to provide assurances that changes will be considered. Many complainants want to know that others will not experience the same challenges they did.

Mediation can satisfy the procedural justice goals of a person who wants their “day in court”. In some cases, it can meet those needs significantly better than the court system. For one thing, a person is encouraged in mediation to tell their story directly and, as such, is “empowered” to control the process and the outcome rather than handing over control to a neutral decision-maker.

Some people may need forms of speedy adjudication (including arbitration). Other parties may just need a “neutral evaluation” (a considered opinion from a respected expert) to break a logjam in negotiations. The effective use of technology may be able to meet needs for a “day in court” provided the procedural justice goals are met.

As legal professionals, we need to exercise caution, curiosity and wisdom when we hear someone say they want their “day in court”. Some matters absolutely need resolution through the courts. However, an exclusive focus on litigation may mean that people will miss out on an opportunity for processes and outcomes that could be far better suited to their needs. Rather than assuming they really do want to start a court action and start that train rumbling down the tracks, we need to pause and inquire about what they really want. How can we coach them to select the process that would best suit their needs for a just outcome? At Mediate BC we call this process “effective triage”: matching the process to the needs of the parties and the situation.

This approach is implied in section 8 of the new BC Family Law Act which requires all “family dispute resolution professionals” (including family lawyers) to:

(a) discuss with the party the advisability of using various types of family dispute resolution to resolve the matter, and

(b) inform the party of the facilities and other resources, known to the family dispute resolution professional, that may be available to assist in resolving the dispute.

This is a significant departure from previous practice and a positive signal to the profession and the public. Effective triage is one of the keys to improving access to justice for citizens. Time will tell if the legislative provisions achieve their intended purpose but, at this stage, it looks like good news!

Comments

Thanks for this post. My sense is also that few people who have not yet experienced litigation lately could accurately predict the complexity and cost of what a day in court entails. Processes like the triage as you describe could do a good deal to help align clients expectations and the approach taken by their counsel. Might you be able to point us to the research on procedural justice you reference ?

Thanks Fred! I think my footnotes were lost in translation :)! The most succinct discussion of the principles of procedural justice in this context is found in articles by Nancy Welsh: Nancy A. Welsh, “Making Deals in Court-Connected Mediation: What’s Justice Got to Do With It?”, [2001] 79 Wash. U. L. Q. 787 and Leonard L. Riskin and Nancy A. Welsh, “Is That All there Is? ‘The Problem’ in Court-Oriented Mediation’ (2008), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1136779. Jerry McHale’s article provides a great summary of the civil legal need research and the challenges of cost, complexity and delay: “Access to Justice: A Government Perspective” [2012] Volume 63 University of New Brunswick Law Journal 352.

This note makes a number of good points, notably that one size does not fit all … disputes. A relatively brief description of some Canadian initiatives in online dispute resolution, including by Mediate BC, is here.

Pleadings service, discovery & c (in the cases where each actually occur) are all innovations that were introduced so that peolple’s stories could be heard more clearly and understood respectfully, their perspectives seen and the matters they were inviolved in decided even-handedly (and to make litigation quicker and cheaper, of course. @John Gregory: and that is why we have spent the last two centuries merging, fusing and simplifying courts to end disputes about which size was the best fit -and why we then split Small Claims Court and Family Court off again, of course.